United States v. Tyrone Brown , 436 F. App'x 208 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4627
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYRONE DOUGLAS BROWN,
Defendant - Appellant.
No. 10-4790
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYRONE DOUGLAS BROWN,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Spartanburg. Henry F. Floyd, District
Judge. (7:09-cr-00427-HFF-2; 7:09-cr-00570-HFF-1)
Submitted: June 27, 2011 Decided: June 30, 2011
Before WILKINSON, KING, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael Chesser, Aiken, South Carolina, for Appellant. William
Jacob Watkins, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Tyrone Brown pled guilty without a plea agreement, in
two separate proceedings, to use of a firearm in connection with
a crime of violence, 18 U.S.C. § 924(c) (2006); carjacking, 18
U.S.C. § 2119(1) (2006); and possession with intent to
distribute more than five grams of crack cocaine, 21 U.S.C.
§§ 841(a)(1), (b)(1)(B) (2006). The district court sentenced
Brown to 120 months of imprisonment, plus a consecutive eighty-
four-month sentence for the § 924(c) offense, for a total term
of 204 months. Brown’s attorney has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), stating that, in
counsel’s view, there are no meritorious issues for appeal, but
questioning the adequacy of Brown’s guilty plea hearing. In
addition, Brown has filed a supplemental pro se brief in which
he asserts, first, that his sentence is unreasonable because the
sentence imposed for his § 924(c) offense should run
concurrently with the 120-month sentence. Second, Brown argues
that the Fair Sentencing Act of 2010 should be applied
retroactively to his sentence. Finding no error, we affirm.
Our review of the record reveals that the district
court fully complied with the requirements of Fed. R. Crim. P.
11 in accepting Brown’s guilty pleas. Rule 11 requires the
district court to address the defendant in open court and inform
him of the following: the nature of the charge; any mandatory
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minimum sentence and the maximum possible sentence; the
applicability of the Sentencing Guidelines; the court’s
obligation to impose a special assessment; the defendant’s right
to an attorney; his right to plead not guilty and be tried by a
jury with the assistance of counsel; his right to confront and
cross-examine witnesses; his right against self-incrimination;
and his right to testify, present evidence, and compel the
attendance of witnesses. The defendant also must be told that a
guilty plea waives any further trial and that his answers at the
proceeding may be used against him in a prosecution for perjury.
Under Rule 11(b)(2), the court must address the defendant to
determine that the plea is voluntary. The court must determine
a factual basis for the plea under Rule 11(b)(3) and require
disclosure of any plea agreement under Rule 11(c)(2). The
district court complied with each of these requirements.
Brown’s challenge to the consecutive term imposed with
respect to his § 924(c) offense is foreclosed by Abbott v.
United States, 131 S. Ct. 18, 23 (2010) (holding that a
defendant who is subject to a mandatory consecutive sentence
under § 924(c) is not spared from that sentence by virtue of
receiving a higher mandatory minimum sentence on a different
count of conviction). See also United States v. Studifin, 240
F.3d 415 (4th Cir. 2001).
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The Fair Sentencing Act (FSA) was signed into law on
August 3, 2010, nine months after Brown was sentenced. We have
recently held that the FSA is not retroactively applicable.
United States v. Bullard, ___ F.3d ___, No. 09-5214, 2011 WL
1718894, at *9-11 (4th Cir. May 6, 2011).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Brown’s conviction and sentence. This court
requires that counsel inform Brown, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Brown requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Brown. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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